1 Ga. App. 569 | Ga. Ct. App. | 1907
The law as it is Avritten compels us in this case to arrive at a conclusion that shocks our sense of justice; but judges have the power only to declare the law, not to make it or amend it. The plaintiff in error was convicted in the police court of Tifton for the violation of a city regulation in regard to the conducting of his business. He applied for certiorari and gave the bond prescribed by the act of December 10, 1902 (Georgia Laws of 1902, p. 105). On the tenth day after the conviction, the judge of the superior court returned the petition for certiorari, refusing his sanction, and thereafter the accused brought the case to this court, assigning error upon the judge’s refusal to sanction the certiorari. Hpon the call of the case here, the defendant in error moved to dismiss, and supported his motion by an affidavit showing that the judgment of the original trial court had been satisfied by payment of the fine imposed. Following the practice prevailing in the Supreme Court, we granted a rule requiring the plaintiff in error to answer whether the facts alleged in the motion to dismiss were truly stated or not. He answered under oath as follows :• “First. That he has paid the fine imposed upon him by the mayor of the city of Tifton, to wit, the sum of $50, and the further sum of $1.25 for costs in the mayor’s court. Second. That the said fine and cost was paid by the plaintiff in error under duress of imprisonment, the circumstances of said imprisonment and duress being as follows: Immediately upon his conviction and sentence in
It is decided in Brown v. Atlanta, 123 Ga. 497, that “A person upon whom such an alternative sentence has been imposed, and who voluntarily complies with that portion of the sentence which is legal, can not thereafter have the judgment of conviction reviewed.” The insertion of the word “voluntarily” into the language just quoted is indicative of the view that the writ of error might be prosecuted if the payment was made under protest and duress. It seems that this is also in harmony with the current of authority. In 22 Am. & Eng. Enc. Law, 618, it is said: “The authorities are unanimous to the effect that where one is compelled by duress of his person to pay an unjust or illegal demand, such payment is compulsory and may be recovered back. Thus, where a person, to secure his release from imprisonment under a void judgment imposing a fine in a criminal proceeding, pays the fine, he may recover back the money so paid;” and Hudson v. Alford, 118 Ga. 669, following Richmond & Danville R. Co. v. Buice, 88 Ga. 180, holds that “Full payment of the fi. fa. founded on a judgment sought to be reversed, pending a writ of error, it not appearing that any supersedeas was sued out, is no cause for dismissing the writ of error, inasmuch as the defendant below (the plaintiff in error here) would be entitled to recover the money back in case the judgment should be reversed.” Taking these two principles together, it seems that the writ of error may be retained, where the fine has been paid under protest, to prevent imprisonment under a void sentence, or under other circumstances amounting to duress.
3. It would be hard to conceive of a case more clearly exemplifying the wisdom of extending the present statutes providing for the obtaining of supersedeas. Under the act of 1902 the supersedeas there provided for expires in ten days; if the certiorari is sanctioned, then the filing of it operates as a further stay of judgment; hut if the judge refuses sanction, we know of no means by which the sentence can be suspended until the case can be heard in the appellate court. It can not be the deliberate intention of the lawmaking power to cut off thus the right of the citizen to challenge the legality of a conviction; and we call attention to the deficiency with the hope that steps may be taken to provide the necessary additional legislation. Writ of error dismissed.